dunnettreader + kelsen   5

Jeremy Waldron Who Needs Rules of Recognition? by :: SSRN in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, Matthew Adler and Kenneth Himma, eds., Oxford University Press, 2009
NYU School of Law, Public Law Research Paper No. 09-21 -- I argue against the idea (made popular by H.L.A. Hart) that the key to a legal system is its "rule of recognition." I argue that much of the work allegedly done by a rule of recognition is either done by a different kind of secondary rule (what Hart called "a rule of change") or it is not done at all (and doesn't have to be done). A rule of change tells us the procedures that must be followed and the substantive conditions that must be satisfied if law is to be changed legislatively; and a judge "recognizes" changes simply by using this checklist. In common law, there is no clear rule of change (because we are profoundly ambivalent about judicial lawmaking). But we get by without one, and without a determinate rule of recognition that would tell us precisely how to infer rules from precedents. It is quite liberating, really, to abandon the idea of a rule of recognition. Apart from anything else, it relieves us from having to participate in endless debates about whether the US Constitution is (or contains) a rule of recognition for American law. The Constitution contains rules of change; that's what matters. -- Number of Pages in PDF File: 28 -- Keywords: certainty, closure, common law, constitution, grundnorm, H.L.A. Hart, Hans Kelsen, Jeremy Bentham, jurisprudence, legal positivism, rule of change, rule of recognition -- downloaded pdf to Note
article  books  SSRN  philosophy_of_law  political_philosophy  legal_system  sociology_of_law  legal_validity  constitutionalism  positivism-legal  common_law  change-social  institutional_change  legislation  judiciary  precedent  judicial_review  foundationalism  US_constitution  Bentham  Hart  Kelsen  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - The Demarcation Problem in Jurisprudence: A New Case for Skepticism :: SSRN - Oxford Journal of Legal Studies, Vol. 32, No. 1, Spring 2012
Legal philosophers have been preoccupied with specifying the differences between two systems of normative guidance - law and morality. Positivists such as Kelsen, Hart, and Raz propose a solution to this “Demarcation Problem” according to which the legal validity of a norm can not depend on its being morally valid, either in all or at least some possible legal systems. The proposed analysis purports to specify the essential and necessary features of law.... Yet the concept of law is an “artifact concept,” that is, a concept that picks out a phenomenon that owes its existence to human activities. Artifact concepts, even simple ones like “chair,” are notoriously resistant to analyses in terms of their essential attributes, precisely because they are hostage to human ends and purposes, and also can not be individuated by their natural properties. 20th-century philosophy of science dealt with a kindred Demarcation Problem: ...how to demarcate science from pseudo-science or nonsense. -- they sought to identify the essential properties of a human artifact (namely, science). They failed, and spectacularly so, which led some philosopher to wonder, “Why does solving the Demarcation Problem matter?” This essay develops the lessons for legal philosophy -- lest we want to become embroiled in pointless Fullerian speculations about the effects of jurisprudential doctrines on behavior, it is time to abandon the Demarcation Problem in jurisprudence. -- downloaded pdf to Note
article  SSRN  philosophy_of_law  20thC  21stC  Logical_Positivism  linguistic_turn  concepts  analytical_philosophy  essentialism  natural_kinds  modal_logic  moral_philosophy  moral_psychology  legal_system  positivism-legal  psychologism  natural_law  epistemology-social  epistemology-moral  Carnap  Hempel  Popper  Fuller  Hart  Kelsen  Raz  Finnis  normativity  moral_sentiments  reason-passions  reasons-internalism  reasons-externalism  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Legal Realisms, Old and New :: SSRN (2012 Seegers Lecture in Jurisprudence) - Forthcoming in Valparaiso Law Review (2013)
“Legal Realism” now has sufficient cache that scholars from many different fields and countries compete to claim the mantle of the "Realist program": from political scientists who study judicial behavior, to the "law and society" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms — the American and the Scandinavian — with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? -- I argue that (1) American and Scandinavian Realism have almost nothing in common — indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions ("the Skeptical Doctrine") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by "new" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. -- Keywords: American legal realism, Scandinavian legal realism, Karl Llewellyn, Axel Hagerstrom, Alf Ross, naturalism, H.L.A. Hart, Hans Kelsen, judicial behavior
article  SSRN  philosophy_of_law  social_theory  intellectual_history  intellectual_history-distorted  legal_theory  legal_realism  social_sciences  anthropology  sociology_of_law  normativity  norms  causation  causation-social  positivism-legal  naturalism  social_process  judiciary  behavioralism  Hart  Kelsen  US_legal_system  downloaded  EF-add 
july 2014 by dunnettreader
Brian Bix - Legal Positivism (posted 2003) :: SSRN - BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY, Martin P. Golding & William A. Edmundson, eds., Blackwell, 2005
This article tries to present the jurisprudential school of thought, legal positivism, within a larger context than is usual in contemporary English-language discussions of that approach: (1) showing the intellectual and political contexts in which the movement began; (2) emphasizing the variety of theories that fit under that label (e.g., how the Kelsenian tradition varies significantly from the Hartian tradition); and (3) discussing how the future development of legal positivism will depend on its discussion of wider theoretical issues (e.g., the proper approach to social theory, and the use of conceptual analysis in philosophy). The article also summarizes the main criticisms of legal positivism, and gives an overview of the internal debate of inclusive legal positivism versus exclusive legal positivism. Note: This is a description of the paper and not the actual abstract -- downloaded pdf to Note
chapter  books  SSRN  philosophy_of_law  legal_system  legal_theory  legal_culture  intellectual_history  19thC  20thC  Germany  Anglo-American  positivism-legal  Kelsen  Hart  social_theory  sociology_of_law  analytical_philosophy  concepts  bibliography  downloaded  EF-add 
july 2014 by dunnettreader
Michael Steven Green - Kelsen, Quietism, and the Rule of Recognition (2008 last revised 2011) :: SSRN
Research paper to appear in THE RULE OF RECOGNITION AND THE UNITED STATES CONSTITUTION, Matthew D. Adler, Kenneth E. Himma eds., Oxford University Press, -- Sometimes the fact that something is the law can be justified by the law. For example, Sarbanes-Oxley is the law because it was enacted by Congress pursuant to the Commerce Clause. But eventually legal justification of law ends. The ultimate criteria of validity cannot themselves be justified by law. According to H.L.A. Hart, justification of these ultimate criteria is still available, by reference to social facts concerning official acceptance - facts about what Hart calls the "rule of recognition" for the system. Drawing upon criticisms of sociological accounts of the law that can be found in the writings of Hans Kelsen, I argue in this essay that Hart's approach cannot account for statements about the law that assert the independence of legal validity from rule of recognition facts. I offer as an alternative a legal quietist approach, which can account for such statements. For the quietist, legal justification exhausts the possible justification for law. If our judgments about the law are fundamental, in the sense that they cannot be justified by other judgments about the law, then they have no justification (which is not to say that they should be abandoned). I argue that legal quietism is exemplified - if somewhat imperfectly - in Kelsen's writings, and I end the essay by exploring some difficulties that the quietist approach must face. -- downloaded pdf to Note
article  intellectual_history  20thC  Germany  Anglo-American  legal_theory  positivism-legal  Hart  Kelsen  social_theory  sociology_of_law  downloaded  EF-add 
july 2014 by dunnettreader

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